The Arabist

By Issandr El Amrani and friends.

In Translation: The SCC's verdicts

We've had the linguistic gnomes at Industry Arabic working overtime this weekend to translate the verdicts dissolving parliament and declaring the Political Exclusion Law unconstitutional issued by Egypt's Supreme Constitutional Court this weekend. They plowed through the legalese and given us this —a full translation of the verdicts, available in PDF [334kb, original Arabic version here.]. They even highlighted in yellow some of more significant passages.

Below I am excerpting the reasoning of disbanding parliament because members of political parties were allowed to run for the individual candidacy (aka simple majority of first-past-the-post) seats:

There is no doubt that establishing this competition had a definite impact and reciprocal effect on the two-thirds allocated for closed party lists, since if political parties were not competing with independents over that other portion, then a rearrangement would have taken place within the party lists, taking into account the priorites within each party. Furthermore, political party members had the choice between two ways to run for the People's Assembly, the closed party-list system and the individual candidacy system. Independents were deprived of one of these ways, and their rights were limited to the portion allotted for the individual candidacy system, in which political party members also competed.

While I understand that the court mostly based its argument on electoral laws — the "unconstitutional" law electoral of 2011, replacing or amending previous ones being the chief problem — I was not sure what parts of the 2011 Constitutional Declaration the said law violated, particularly since previous decisions to dissolve parliament (in 1987 and 1990) often invoked in this case took place under a different constitution. Indeed, oddly, there are references to both the 1971 Constitution (under which many laws regulating political life where enacted) and the 2011 Constitutional Declaration now in place. The court itself at times seems to hesitate between the two, as if both were somehow still relevant rather than just the latter.

Once again, the key argument of the court is that the 2011 electoral law discriminated against independents because while members of political parties could contest both the list system and the simple majority system, non-affiliated politicians could only take part in the simple majority races. This, it ruled, is a violation of the principle of equality, as enshrined in Article 7 of the 2011 Constitutional Declaration:

Law applies equally to all citizens, and they are equal in rights and general duties. They may not be discriminated against due to race, origin, language, religion, or creed.

Here's the court's long-winded argument:

Whereas it is established that the political system in the Arab Republic of Egypt shall be a multi-party system – under the 1971 Constitution, and confirmed by Article 4 of the Constitutional Declaration – considering that this multiplicity aims primarily to deepen democracy and anchor its foundations within the framework of the right to run for office and vote, which are considered a primary gateway and a basic rule for it. Hence, these rights were guaranteed by the Constitutional Declaration to all citizens, who hold popular sovereignty in accordance with the provisions of Article 3 of the Constitutional Declaration, and exercise it according to the means indicated in that Declaration. There is no proof of this stronger than the fact that the multi-party system is what carries within its folds a system in which opinions may agree or disagree, while the national interest remains its framework, standard of assessment, and check on their activity, which is an interest that is maintained by the whole people. The multi-party system was not a means adopted by the constitutional legislature to replace one domination with another, but was considered a straight path for national action through the democracy of dialogue, within which opinions are numerous and varied, with the role played by political parties connected in the end to the wish of the voters in all their different aggregations. It is a wish which manifests itself when they freely choose their representatives for parliament, and in the weight their votes throws behind those who are competing for the seats. This is what the Constitutional Declaration was intent on ensuring, guaranteeing the right to vote and to run for office, and making them equal in the exercise of those two rights. It did not permit discrimination between them in the bases on which they exercised these rights, nor did it give preference to some citizens over others in any issue related to them. It granted these two rights to the citizens -- who meet the required conditions – regardless of their varied affiliations and political opinions, in order to guarantee that national action remains collective, with no preference for some citizens over others. Through this collaborative effort in building up national actions, political parties shall work with those not affiliated with them, in order to anchor the foundations of these actions. Thereby, the true meaning of Article 3 of the Constitutional Declaration is realized, which does not grant popular sovereignty to one class, excluding the other, nor impose the authority of one group over the other. Within this framework lies the value of the multi-party system as a constitutional purpose for deepening the concept of democracy, which does not offer political parties a role in national action that exceeds the margin of confidence granted by the voters to their candidates, who compete with others according to objectives rules unlimited by any creed, and unrestricted by any form of affiliation, whether political or non-political, so that all citizens who fulfil the conditions set for this would have the same opportunity – through which they influence, equally among themselves – the shaping of national policy and the determination of its final features. This is confirmed by the fact that the Constitutional Declaration does not include a provision compelling citizens to join political parties, or conditioning the exercise of political rights related to the right to run for office and to vote on party affiliation, which indicates by necessity that it establishes the freedom of citizens to join or not to join political parties, and to exercise their enumerated political rights through political parties or apart from them. Undoubtedly, the principles of equality and equal opportunity, which are the primary fundamentals and principles concerned in the matter, necessitate one legal treatment for all candidates, on the basis of equal opportunity for all, with no discrimination based on party affiliation. Discrimination in that case would be based on difference in political opinion, which is a matter prohibited constitutionally. The party system should not become a restriction on the freedoms and the public rights originating from it, one of which is the right to run for office, which is one of the public rights stipulated by the nature of parliamentary democratic systems, and imposed by its main cornerstone, which is based on accepting the sovereignty of the people, in accordance with the provisions of Article 3 of the Constitutional Declaration.

Of course remember that the 2011 electoral law was drafted by SCAF in September and then modified three times by October. Surely they could have checked it then?

I'll leave legal analysis to others — do chip in with your two piasters.